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United States District Court, Southern District of New York

March 31, 2003


The opinion of the court was delivered by: Richard Conway Casey, United States District Judge


Plaintiff, Yeheskel Dattner, brings this suit against ConAgra Foods, Inc., ConAgra International Inc. (collectively "ConAgra"), and Donald Da Parma for malicious prosecution, abuse of process, intentional infliction of emotional distress, and false imprisonment. His claim arises out of a series of actions and transactions by and between Plaintiff and Defendants, which culminated in Plaintiff's incarceration in a French prison and the instigation of a French criminal proceeding against him.

Following Plaintiff's complaint, Defendants moved to dismiss the action pursuant to (1) the doctrine of forum non conveniens; (2) New York statutes of limitations; and (3) Plaintiff's failure to state a claim upon which relief can be granted. For the reasons stated below, the Court grants Defendants' motion to dismiss pursuant to the doctrine of forum non conveniens.


Plaintiff is an Israeli citizen and businessman who was living in London at the time of the events at issue. Defendant ConAgra Foods Inc. is incorporated in Delaware and maintains its corporate offices in Omaha, Nebraska. ConAgra International, Inc., is a subsidiary of ConAgra Foods Inc. It is also incorporated in Delaware and has no independent corporate offices. Defendant Donald Da Parma is an attorney who was working for ConAgra at the time of the events in question.

In 1992, ConAgra contracted with Plaintiff to serve as a consultant in developing a Pistachio nuts business in Europe and other parts of the world (excluding the United States). Plaintiff was to work primarily with ConAgra Netherlands, a subsidiary of ConAgra International. In consultation with Mr. Van Der Maijden, an executive of ConAgra's Netherlands office, Plaintiff developed a business plan for ConAgra's pistachio business in Europe and other parts of the world. Plaintiff's efforts were particularly successful in France, where he developed a strong client base for the sale of ConAgra's pistachio nuts with the assistance of a Mr. Souffir.

In December 1993, Plaintiff was instructed by the ConAgra Netherlands office to discontinue his involvement with the French business and start looking for business opportunities in other parts of the world. Plaintiff expressed his preference to continue working with the French venture, arguing that his involvement was critical to ConAgra's continued success in the French market. Despite his regrets, Plaintiff began working on projects to merchandise pistachio nuts in other areas of the world.

At around the time he was removed from the French pistachio venture, Plaintiff had developed suspicions that Mr. Van Der Maijden and other executives in the Netherlands office were jealous of his success in France and planned to usurp Plaintiff's efforts in France for their own benefit. In March 1994, Plaintiff wrote to ConAgra executives in the Omaha, Nebraska office, informing them of his suspicions. A few days later, Plaintiff received a letter informing him that ConAgra was terminating his consulting contract. Around April 1994, ConAgra also fired several executive staff of the Netherlands office. At about that time, ConAgra alleged that invoices for goods delivered to Plaintiff's French clients remained unpaid.

Alleging that his termination was a breach of his consulting contract with ConAgra, Plaintiff initiated civil proceedings in the Netherlands. In July 1994, ConAgra Netherlands commenced civil proceedings in France against the French companies to recover money due under the invoices. The French companies denied having received the goods charged in the invoices, although one company was found liable to ConAgra for value of the goods.

Plaintiff allegedly contacted police to report his suspicions about Mr. Souffir, who had assisted Plaintiff in securing accounts with the French companies. In November 1994, Plaintiff contacted Defendant Donald Da Parma in New York to inform him of Plaintiff's meeting with the French police. Da Parma left New York and flew to Paris to meet with Plaintiff. According to the Complaint, Da Parma acknowledged that Plaintiff had done nothing wrong and asked him to cooperate with the police.

On December 7, 1994, Plaintiff was arrested in France on allegations of fraud. Plaintiff was kept in jail for approximately six months and was released on bail on June 2, 1995. ConAgra was involved in the prosecutor's criminal investigation of Plaintiff; however, the actual extent of its involvement is unclear. ConAgra also filed a civil complaint against Plaintiff to recover damages for the losses incurred by its Netherlands office.

On February 2, 2000, ConAgra's civil action was dismissed and Plaintiff was acquitted by the Paris Criminal Court. Thereafter, ConAgra and the French prosecution appealed the court's judgment, and the Paris Court of Appeal tried the case de novo. On December 15, 2000, Plaintiff was acquitted of all charges by the French appellate court.

Plaintiff filed this action against Defendants on December 10, 2001 on the grounds of malicious prosecution, abuse of process, false imprisonment and intentional infliction of emotional distress. On March 13, 2002, Defendants moved to dismiss Plaintiff's complaint based on forum non conveniens, failure to state a claim, and the New York statutes of limitations.


A district court may dismiss a claim pursuant to the doctrine of forum non conveniens if (1) there is an adequate alternative forum and (2) the public and private interests weigh in favor of such a forum. See Alfadda v. Fenn, 159 F.3d 41, 45 (2d Cir. 1998. A determination as to dismissal of a case pursuant to the doctrine of forum non conveniens lies within the broad discretion of the district court. See id. (internal citations omitted). A plaintiff is generally entitled to a strong presumption in favor of his or her home forum. See id. at 46. Defendant has the burden of establishing that an adequate alternative forum exists and that the pertinent factors tilt strongly in favor of trial in that forum. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 100 (2d Cir. 2000).

Presumption in Favor of Plaintiff's Choice of Forum

In evaluating a forum non conveniens claim, a court generally grants a strong presumption in favor of plaintiff's choice of forum. See Alfadda, 159 F.3d at 46. This presumption is weaker, however, when the plaintiff is foreign. See id. In Wiwa v. Royal Dutch Petroleum Co., the Second Circuit held that foreign citizen plaintiffs who resided in the United States at the time of the filing were entitled to the same presumption in favor of their choice of forum as that afforded U.S. citizens. 226 F.3d at 103. In doing so, the court explained that such analysis is not governed by a bright-line rule; rather, it is based on the premise that "the greater the plaintiff's ties to his or her chosen forum, the more likely it is that the plaintiff would be inconvenienced by a requirement to bring the claim in a foreign jurisdiction." Id. at 102.

Here, Plaintiff is an Israeli citizen and claims that he is a resident of New Jersey. He asserts that, as a New Jersey resident, he is entitled to a strong presumption in favor of a United States forum. In Wiwa, the Second Circuit held that foreign citizen plaintiffs who are U.S. residents may be entitled to a strong presumption in favor of their choice of forum. In that case, however, the plaintiffs were U.S. residents at the time the complaint was filed. See id. at 94. Here, the plaintiff is a foreign citizen who was not living in the United States at the time that the complaint was filed and claims to have established residency while this case was pending.

Perhaps recognizing that residency can be a fluid concept, the Wiwa court held that the determination of whether a foreign plaintiff is entitled to the same presumption in favor of his or her choice of forum as is granted a U.S. citizen depends on each plaintiff's ties to the forum. Id. at 102. Therefore, this Court will look beyond Plaintiff's claims of residency and examine his actual ties to this country.

When Plaintiff filed this lawsuit in December 2001, he was an Israeli resident visiting this country on a B1 (temporary business) visa. Plaintiff's address as stated in the Verified Complaint is in Israel, and a letter to the Court from Plaintiff's counsel, dated February 27, 2002, states that "Plaintiff [was] residing in Israel at the time of the Complaint." Letter to Judge Casey from Ron Soffer. Less than two months later, Plaintiff claimed in his opposition papers to Defendants' motions to dismiss that he "is an Israeli citizen who now lives in the United States and works in New York." Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss the Complaint 10, dated April 16, 2002.

Plaintiff received a temporary H-1 work visa from the Immigration and Naturalization Service in February 2002 based on the sponsorship of a diamond company called Crystal USA. See Affidavit of Yeheskel Dattner ("Dattner Aff.") ¶ 3, ¶ 5. In its papers to the Immigration and Naturalization Service, Crystal USA claims to be located at 2 West 46th Street, New York, NY. See Attorney's Declaration of Frank H. Wohl in Support of Motion to Dismiss ("Wohl Decl."), Exhibit F. Plaintiff claims that this is his work address. See Dattner Aff. ¶ 5.

When Defendants attempted to visit Crystal USA Corp. at its stated address, however, they were unable to locate any representatives of the company nor any evidence that the company continued to use that address for any business related to Crystal USA. See Wohl Decl. ¶ 9; ¶ 10. Defendants found another company doing business at the claimed address, and a representative from that company informed Defendants that Crystal USA had ceased doing business and that the principals of the company had returned to Israel.*fn1 See id.

Moreover, as of June 2002, Plaintiff had not filed any income taxes with the United States federal government; rather, his taxes were filed in Israel. See Deposition of Yeheskel Dattner 546, June 17-18, 2002, Exhibit C to Wohl Decl.

Plaintiff's ties to the United States and the nature of his time here suggest that he has not established sufficient residency to warrant a strong presumption in favor of a U.S. forum. In contrast to the situation in presented in Wiwa, the plaintiff in this case was not residing in the U.S. at the time he filed the complaint. Cf. Wiwa. Furthermore, Plaintiff is in this country on a temporary visa, his family lives in Israel, he has no established employment here, and has paid no income taxes to the United States government. Because his ties to this forum are tenuous, the Court applies a relatively weak presumption in favor of Plaintiff's choice of forum.

Although the Court finds that Plaintiff is not entitled to the same presumption afforded a U.S. resident, it nevertheless affords some weight to Plaintiff's choice of forum. See Murray v. British Broadcasting Corporation, 81 F.3d 287, 290 ("some weight must still be given to a foreign plaintiff's choice of forum"). In order to defeat this presumption, Defendants must establish that an adequate alternative forum exists and that public and private interests strongly favor trial in the foreign forum. See Wiwa, 226 F.3d at 100.

Adequate Alternative Forum

The threshold issue in a forum non conveniens inquiry is whether the alternative forum is adequate. The Second Circuit has held that a forum is generally adequate if the defendant is subject to process in that forum. See DiRienzo v. Philip Services Corporation. An agreement by the defendant to submit to the jurisdiction of the foreign forum can generally satisfy this requirement. The United States Supreme Court has noted that "in rare circumstances, [] where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative." Piper Aircraft Co. v. Reyno, 454 U.S. 235 n. 255 (1981).

French civil remedies are available to address Plaintiff's complaint; it is therefore not one of the "rare circumstances" in which the remedy offered by the foreign forum is clearly unsatisfactory. See Bermann Decl., ¶ 47-63. Moreover, the possibility that French law may prove less favorable to Plaintiff does not make France an inadequate forum. See Piper Aircraft, 454 U.S. at 261 ("plaintiff may [not] defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to plaintiffs than that of the present forum").

Additionally, all defendants in this case have consented to submit to jurisdiction in France if the Court deems such consent an appropriate condition of dismissal. Wohl Dec., para. 7. Thus, this Court finds that France is an adequate forum for Plaintiff's claims.

Weighing of Interests

In Gulf Oil v. Gilbert, 330 U.S. 501 (1947), the Supreme Court set forth several factors that a district court should consider in weighing the public and private interests under a forum non conveniens inquiry. The public interests include having local disputes decided locally, avoiding problems of applying foreign law, and avoiding burdening jurors with cases that have no impact on their community. See Gulf Oil, 330 U.S. at 508. The private interests include ease of access to evidence, the cost for witnesses to attend trial, availability of compulsory process, and other factors that might shorten trial or make it less expensive. See id. at 509. As set forth below, the private and public interests in this case weigh in favor of dismissal and are substantial enough to overcome the presumption in favor of Plaintiff's choice of forum.

Public Interests

New York has virtually no public interest in this action. This case involves issues of importance to the administration of justice in France, but of little concern to New York judges and jurors. Further, French judges are in a far better position than this Court to evaluate Plaintiff's arguments that Defendants abused the French judicial system and to determine whether Plaintiff is entitled to any remedy. Indeed, the judicial questions posed by the interplay between the French criminal process and the opportunity for civil redress for abuses of this process reflect policy judgments that France has made and should apply. Other courts in this district have similarly found little to no public interest in trying cases involving intentional tort claims based on foreign criminal proceedings. See Reingruber v. Dennison Int'l Co., Inc., 1998 WL 760229 WL 760229 at *4 (S.D.N.Y. 1998); Paumgarten v. Handels-und Privatbank, 1992 U.S. Dist. Lexis 858 at *11-12 (S.D.N.Y. 1992).

The application of French law further weighs in favor of transferring this case to France. In actions for intentional torts, New York courts apply an "interest analysis," which gives effect to the law of the jurisdiction having the greatest interest in the litigation. See Elson v. Defren, 726 N.Y.S.2d 407, 412 (App. Div. 1st Dep't 2001). Where, as here, the law at issue is conduct-regulating, New York courts generally apply the law of the place where the tort occurred. See id. In this case, the tortious action occurred in France, which is where Defendants filed their complaint against Plaintiff and where Plaintiff was arrested, incarcerated, and tried. Thus, this case calls for the application of French law. This Court is not familiar with French law, and the trial of Plaintiff's case would pose an unnecessary burden on the federal court system.

The public interest factors in this case weigh strongly in favor of a French forum. Plaintiff's action requires the interpretation of French law and familiarity with the French criminal justice system, has little relation to New York or the United States, and involves issues of great importance to France and its criminal justice system This is not a case that should burden congested federal courts or New York jurors with deciding issues that have little impact on this community and determining issues based on a legal system that is very different from the one in this country.

Private Interests

The private interests implicated in this case also weigh in favor of a French forum. The fair administration of this case would require the translation of thousands of documents that were used in the French criminal proceedings and the testimony of witnesses located in France. Potential witnesses include the judicial officers involved in the French proceedings, Plaintiff's former Pistachio clients, and the French attorneys who represented Defendants in the French proceedings. All of these individuals are located in or around France. In addition, ConAgra's former employees from its Netherlands office are likely to be found in the Netherlands, which is much closer to France than New York. Finally, France is closer to Israel, where Plaintiff is a citizen, than is New York. See Alfaddda, 159 F.3d at 46, 47.

Defendant has offered to stipulate to the submission of all ConAgra employees to the jurisdiction of the French courts for the purposes of the instant claim. Plaintiff is unable to identify any other witnesses he wishes to call who would be subject to process in the U.S. but not in France. See Transcript of Oral Argument at 10. Plaintiff's case would therefore not be prejudiced from the inability to compel process should this case be transferred to France.


For the foregoing reasons, Defendants' motion to dismiss this case based on forum non conveniens is granted, on the condition that Defendants submit themselves to French jurisdiction for the purposes of resolving this action. Because the Court finds that this case should be dismissed on forum non conveniens grounds, it need not address Defendants' statute of limitations claims or their motion to dismiss for failure to state a claim.


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